Sixth Circuit Rules that Michigan's Parole Guidelines Don't Create a Liberty Interest

A number of years ago, the Michigan Legislature adopted parole guidelines to attempt to reduce the disparity between the individuals who received parole and those who didn’t. The Guidelines were originally part of the legislation which created our sentencing guidelines. They were separated at some point and were passed separately. The statute creates three tiers of offenders: (1) those with a low probability of parole; (2) those with a high probability of parole; and, (3) hose with an average probability of a parole.

Those with individuals with an average probability of parole had no statutory preference for or against a parole. Those individuals who had a high and low probabilities of parole either had a statutory presumption in favor of or against a parole. The legislature copied the language for parole standards from our sentencing guidelines and stated that departures from the guidelines should only be for “substantial and compelling” reasons. Case law interpreting the sentencing guidelines said that this was a high standard and imposed a requirement that “substantial and compelling” had to be objectively verifiable.

On its face, this would seem that Michigan had created a liberty interest in our parole scheme. Ordinarily there is no right to a parole which is protected by the due process clause to the United States Constitution. The United States Supreme Court in
Greenholtz v Nebraska Penal Complex found that a Nebraska scheme which found that a Nebraska law provided that a parole should be granted unless certain objective factors were present created a liberty interest. Michigan’s law facially seemed to match this criteria, but Michigan Courts had constantly interpreted the law to the contrary. On September 20, 2011 in Crump v Lafler the Sixth Circuit appeared to drive a stake through the heart of the argument. The Court stated that historically both federal courts and Michigan courts have rejected the stricter interpretation of MIchigan law and concluded that Michigan’s scheme only created a “hope” of parole.

Judge Cole wrote a nice dissent arguing to the contrary. HIs approach matches what the Legislature intended, but the ruling may be a lone voice in the wind. Presumably the Petitioner will be seeking en band rehearing and/or certiorari. Stay tuned.